Here's what happened: McGillicuddy asked Delton a technical question. "Well, in your opinion, is a .26 coefficient of friction a sufficient road surface friction level for safe travel of people using Arizona highways?"
Harrison, who represented the state at the deposition, told Delton not to answer. McGillicuddy picked up his phone and called a special master--a kind of referee appointed to settle such disputes. The special master instructed Delton to answer the question.
Instead, Harrison started to take Delton out of the room to discuss the question. McGillicuddy objected, saying it was against the rules to take a witness out of the room before he answered a question.
Harrison did it anyway, and the special master as well as the judge agreed Harrison violated court rules when he did it.
But instead of fining Harrison or sanctioning him privately, Judge Rogers opted to let the jury know all about the breach of rules. And that reflected very badly on the state's credibility, according to juror Tramel and lawyers in the case.
"To take him out left the impression he was being coached," Tramel says.
It wasn't the first time Judge Rogers had slammed the state attorneys. Spinner, the lead assistant AG on the case, had barely finished her opening statement when the judge admonished jurors that she had misled them by suggesting they would hear that no other drivers lost control on Highway 89 the day of the accident. Rogers, however, had already ruled that evidence of other accidents--or lack of accidents--was inadmissible.
"I don't have the slightest idea whether or not there were other accidents on the date in question," Rogers told the jury. "But what I do know is there will be no evidence presented on this issue. And the statement made by Miss Spinner was wrong and should not have been made and I am instructing you to disregard that statement.
"And please, I'd appreciate it if you make a note of that in your notebook, please."
But it was Maynard, the engineering technician who had participated in the tests on highways 87 and 587, who perhaps most undermined the state's credibility. Maynard changed his testimony about those tests after Delton, his boss, told him their stories didn't match.
"I honestly believe in my heart that [saving his job] was his biggest consideration," says Tramel.
Maynard had told Stewart's attorneys during his deposition that when they did the road tests, their car had spun out several times--"did a bunch of 360s down the road," was how he described it. That was in December 1997, and Maynard went into his deposition as soon as Delton was finished with his, so the two didn't have a chance to talk, McGillicuddy says.
But when he got on the witness stand during trial in January, Maynard said he could only remember one test run in which the car "rotated." He said he'd met with the state's attorneys the week before to go over his deposition. Later, Delton acknowledged under questioning from Perry that he'd told Maynard he'd better review the notes he'd taken that day because that wasn't how Delton remembered it.
The fact that Maynard had even taken notes during the road tests also proved to be another black mark against the state. Even though his subpoena before his deposition called for him to bring any notes, Maynard never produced them. When he mentioned them in court in January, Judge Rogers quickly ordered him to retrieve them.
When Maynard returned to the stand, his notes reflected not only that the test vehicle had spun out on Highway 87 but that it had also spun out at least four times on Highway 587.
As the jury was preparing to deliberate, Rogers issued an unusual instruction. He told jurors they could infer that any evidence they felt the state tried to hide or destroy could be considered adverse to the state's position.
Tramel was one who applauded Rogers' get-tough attitude toward the state's attorneys. He says he's always believed the state should hold to the highest standards--and play fair.
"I don't think anybody on that jury believed Terry McGillicuddy was the second coming of Christ," he says.
"But Mr. McGillicuddy was able to make credible the idea that the state had not been forthcoming, that the state had tried to prevent the jury from hearing evidence, that the state had chosen to play a smoke-and-mirrors game."
Contact Patti Epler at her online address: pepler@newtimes.com
